I was interested in the article about the broken liability system and alternatives (“Transforming the medical liability system,” AAOS Now, September 2010). I believe compensation should not always be linked to medical errors or negligence, but should also be available for medical mishaps or what I would call maloccurrences.
Certainly when a physician acts with gross negligence or performs in a manner that obviously violates the standard of care, a medical liability lawsuit would be in order and may help identify doctors who have not developed or maintained proficiency or have not kept their patients’ best interest foremost—but that does not describe most medical liability cases today.
I would propose a system of maloccurrence insurance, to change the mindset of both patients and providers. If a system of maloccurrence insurance were put in place, the dysfunction of the current system could be greatly alleviated.
In such a system, data concerning the risks involved in most common major medical and surgical interventions could be defined, using the current literature reports and insurer records of known complications and success/failure rates. This information would be updated as new data become available. Adding in known patient variables, a risk assessment could estimate the expected and possible outcome probabilities. The patient, armed with this information and given a more realistic and detailed risk assessment than is now available, could be offered maloccurrence insurance.
If the patient is willing to accept the known risks, he or she could choose to proceed with or without personally investing in the maloccurrence insurance. Should a known potential complication occur and the treating physician and facility have followed standard and accepted protocols and techniques, the patient who has purchased the insurance would be compensated by the predisclosed, actuarially determined remuneration without legal entanglements or uncertainty.
Such a system has the following advantages:
- Personal and more detailed investment in medical decision making by the patient
- Better informed consent by the physicians, who would be motivated to adhere to the best practice standards, clearly define them to the patient, and proceed with treatment without the fear of lawsuits if known complications occur
- Thorough reporting and review of adverse outcomes
- Compensation to those who have complications without seeking or trying to prove “fault” where none may exist
Robert L. Pierron, MD
Overland Park, Kan.
Don’t shortchange ECSW
I really enjoyed the editorial in the September 2010 AAOS Now. I was pleased to learn that another orthopaedist had been in the same boat as I.
About 6 years ago, my wife, Dana, who is a ballet dancer, developed severe plantar fasciitis. I tried the usual treatment modalities to no avail. This went on for months. My wife did not give up hope, but she clearly was not getting any better.
We started to think about surgical release, and I was prepared to refer her to an orthopaedic colleague. A podiatric colleague whom I have known for more than 25 years told me of his success with extra-corporeal shock wave (ECSW) therapy, and out of desperation (and to avoid open surgical release), my wife had it performed as an outpatient, using local anesthetic and with very little risk.
To my personal surprise, she made a rapid recovery, was back dancing about 2 months later, and has had no recurrence.
Since then, I have referred other similarly recalcitrant cases, and ECSW has worked equally well on all of them.
It seems likely that platelet-rich plasma will become a useful modality for us as it becomes more widely used, accepted, and approved by insurance companies, but I think that we, as orthopaedic surgeons, may have really missed the boat with ECSW therapy.
At least my wife thinks so!
Michael Roy Treister, MD
Truth in advertising?
The newest wave of total knee direct-to-consumer marketing goes too far. On average, three times a day I have a 40-ish-year-old man with moderate arthritis who says he wants that new “sports knee” he saw on TV. He says he wants to get the surgery out of the way because he knows it’s inevitable and wants to do it while he is young so he may return to sports (as he saw on TV). If I don’t recommend knee replacement surgery, he thinks I am holding out on him.
Are device makers accountable to show the appropriate, accurate use of their devices? Or will the “30-year knee” be out there with other mythical creatures such as ghosts, Sasquatch, and the Loch Ness monster?
Russell Meldrum, MD
Setting Now straight
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